IN RE: STEPHEN & MARK 53 ASSOCIATES LLC (2019)

Judgment, Supreme Court, New York County (Nancy M. Bannon, J.), entered April 4, 2018, dismissing the proceeding brought pursuant to CPLR article 78 to annul respondents' determination, dated October 20, 2016, which denied petitioner's request to order removal of the backflow prevention devices installed in its commercial condominium unit, unanimously affirmed, without costs.

This Court affirms the dismissal of the proceeding on an alternative basis argued to but not reached by the motion court (see Chanin v. Machcinski, 139 A.D.3d 490, 31 N.Y.S.3d 492 [1st Dept. 2016] ).  Petitioner's failure to join as a party the condominium board, which installed the backflow prevention device in dispute, constitutes a failure to join a necessary party (see Matter of Ferrando v. New York City Bd. of Stds. & Appeals, 12 A.D.3d 287, 288, 785 N.Y.S.2d 62 [1st Dept. 2004] ).  Since the applicable statutory period has expired and the condominium board can no longer be joined, and proceeding in its absence would potentially be highly prejudicial to it, the proper remedy is dismissal of the proceeding rather than joinder of the condominium board (id.;  see also CPLR 1001 and 1003).

The proceeding was also properly dismissed against respondent Department of Health for the independent reason that it did not make any final determination within the meaning of article 78 (see CPLR 7801[1], 7803[3];  Matter of Best Payphones, Inc. v. Department of Info. Tech. & Telecom. of City of N.Y., 5 N.Y.3d 30, 34, 799 N.Y.S.2d 182, 832 N.E.2d 38 [2005] ).

In view of the foregoing, we need not reach the issue of whether the proceeding was timely commenced because a filing made at midnight should be considered as having been made on the day leading up to the midnight.  We note, however, that there is conflicting authority regarding whether a day ends at midnight, begins at midnight, or both ends and begins at midnight, and the parties have not cited to any cases involving the precise situation at issue here.